Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
RADIO ONE, INC.
This Amended and Restated Certificate of Incorporation of Radio One, Inc.,
was duly adopted in accordance with the provisions of Sections 141, 242 and 245
of the Delaware General Corporation Law. The original Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware on
July 15, 1996, and an Amended and Restated Certificate of Incorporation was
filed with the Secretary of State of the State of Delaware on May 6, 1999. The
text of the Corporation's Certificate of Incorporation as heretofore amended is
hereby restated and further amended to read in its entirety as follows:
ARTICLE I
Name
The name of the corporation is Radio One, Inc. (hereinafter referred to as
the "Corporation").
ARTICLE II
Registered Office
The post office address of the registered office of the Corporation in the
State of Delaware is 1013 Centre Road, Wilmington, New Castle County, Delaware
19805. The name of the registered agent of the Corporation at that address is
Corporation Service Company.
ARTICLE III
Purpose
The purpose of the Corporation is to acquire, operate, and maintain radio
stations and television stations and to engage in any other lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "DGCL").
ARTICLE IV
Capital Stock
Section IV.1. Authorized Shares. The total number of shares of capital
stock which the Corporation has authority to issue is 481,000,000 shares,
consisting of: (i) 30,000,000 shares of Class A Common Stock, par value $.001
per share (the "Class A Common"), (ii) 150,000,000 shares
of Class B Common Stock, par value $.001 per share (the "Class B Common"), (iii)
150,000,000 shares of Class C Common Stock, par value $.001 per share (the
"Class C Common"), (iv) 150,000,000 shares of Class D Common Stock, par value
$.001 per share (the "Class D Common" and together with the Class A Common, the
Class B Common, and the Class C Common, the "Common Stock"), and (v) 1,000,000
shares of Preferred Stock, par value $.001 per share . The Preferred Stock and
the Common Stock are hereinafter sometimes collectively referred to as "Capital
Stock." Certain capitalized terms used herein are defined in Section 4.7(c) of
ARTICLE IV.
Section IV.2. Preferred Stock The Board of Directors of the Corporation
(the "Board") is hereby authorized, by resolution or resolutions from time to
time adopted and subject to the limitations provided by law, to establish and
designate one or more series of preferred stock (the "Preferred Stock"), and to
fix the designations, powers, preferences, rights, qualifications, limitations
or restrictions thereof and the variations and relative rights, preferences and
limitations as between series. The authority of the Board with respect to each
series of Preferred Stock shall include, but shall not be limited to,
determination of the following:
(a) the designation of such series, which may be by distinguishing number
or letter;
(b) the number of shares initially constituting such series;
(c) the increase, and the decrease to a number not less than the number of
the then outstanding shares of such series, of the number of shares
constituting such series theretofore fixed;
(d) the rate or rates, and the conditions upon and the times at which
dividends on the shares of such series shall be paid, the preference or
relation which such dividends shall bear to the dividends payable on any
other class or classes or on any other series of stock of the Corporation,
and whether or not such dividends shall be cumulative, and, if such
dividends shall be cumulative, the date or dates from and after which they
shall accumulate;
(e) whether or not the shares of such series shall be redeemable and, if
such shares shall be redeemable, the terms and conditions of such
redemption, including, but not limited to, the date or dates upon or after
which such shares shall be redeemable and the amount per share which shall
be payable upon such redemption, which amount may vary under different
conditions and at different redemption dates;
(f) the rights to which the holders of the shares of such series shall be
entitled upon the voluntary or involuntary liquidation, dissolution or
winding up of, or upon any distribution of the assets of, the Corporation,
which rights may be different in the case of a voluntary liquidation,
dissolution or winding up than in the case of such an involuntary event;
(g) whether or not the shares of such series shall have voting rights, in
addition to the voting rights provided by law and, if such shares shall
have such voting rights, the terms and conditions thereof, including, but
not limited to, the right of the holders of such shares to vote as a
separate class either alone or with the holders of shares of one or more
other series of Preferred Stock and the right to have more than one vote
per share;
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(h) whether or not a sinking or a purchase fund shall be provided for the
redemption or purchase of the shares of such series and, if such a sinking
fund or purchase fund shall be provided, the terms and conditions thereof;
(i) whether or not the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes or any other series
of the same or any other class or classes of stock or any other security of
the Corporation or any other entity and, if provision be made for
conversion or exchange, the terms and conditions of conversion or exchange,
including, but not limited to, any provision for the adjustment of the
conversion or exchange rate or price; and
(j) any other relative rights, preferences and limitations.
Section IV.3. Common Stock. Except as otherwise provided in Section 4.3
of this ARTICLE IV or as otherwise required by applicable law, all shares of
Class A Common, Class B Common, Class C Common and Class D Common shall be
identical in all respects and shall entitle the holders thereof to the same
rights and privileges and shall be subject to the same qualifications,
limitations and restrictions.
(a) Voting Rights. At every meeting of the stockholders, except as
specifically otherwise required by law, the holders of Class A Common shall be
entitled to one vote per share, and the holders of Class B Common shall be
entitled to ten votes per share, on all matters presented for a vote of the
stockholders of the Corporation, provided that, at every meeting of the
stockholders called for the election of directors the holders of Class A Common,
voting separately as a class, shall be entitled to elect two of the directors to
be elected at such meeting. The holders of Class A Common and Class B Common,
voting together as a class, shall be entitled to elect the remaining number of
directors to be elected at such meeting. Directors elected by the holders of a
class or classes of Common Stock may be removed, with or without cause, only by
a majority vote of the holders of the shares of such class or classes of Common
Stock then outstanding. If, during the interval between annual meetings of
stockholders for the election of directors, the number of directors who have
been elected by the holders of any class or classes of Common Stock shall, by
reason of resignation, death or removal, be reduced, the vacancy or vacancies in
the directors elected by the holders of such class or classes of Common Stock
may be filled by a majority vote of the remaining directors elected by the
holders of such class or classes of Common Stock then in office. Any director
elected to fill any such vacancy by the remaining directors then in office may
be removed from office by a majority vote of the holders of the shares of such
class or classes of Common Stock then outstanding. Except as otherwise required
by law, the holders of the Class A Common and the holders of the Class B Common
shall in all matters not specified in this Section 4.3(a) vote together as a
single class, provided that the holders of shares of the Class A Common shall be
entitled to one (1) vote per share and the holders of shares of the Class B
Common shall be entitled to ten (10) votes per share. Except to the extent
provided in ARTICLE VII of this Amended and Restated Certificate of
Incorporation or as required by applicable law, the holders of Class C Common
and Class D Common shall have no right to vote on any matter presented for a
vote of the stockholders of the Corporation (including, without limitation, the
election or removal of directors of the Corporation), and Class C Common and
Class D Common shall not be included in determining the number of shares voting
or entitled to vote on such matters. The Board of Directors of the Corporation
shall have concurrent power with the holders of Class A Common and Class B
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Common to adopt, amend or repeal the Bylaws of the Corporation. A consolidation
or merger, or the sale, lease, exchange, mortgage, pledge, or other disposition
of all, or substantially all, of the property or assets of the Corporation, if
not made in the usual and regular course of its business, shall require a
resolution adopted by a majority of the Board of Directors of the Corporation
and the authorization of an affirmative vote of at least two-thirds of the
outstanding shares of Class A Common.
(b) Dividends. As and when dividends are declared or paid with respect to
shares of Common Stock, whether in cash, property or securities of the
Corporation, the holders of Class A Common, the holders of Class B Common, the
holders of Class C Common and the holders of Class D Common shall be entitled to
receive such dividends pro rata at the same rate per share for each such class
of Common Stock; provided that, if such dividends are declared or paid in shares
of Common Stock, such dividends may be paid only (i) in shares of Class D
Common, or (ii) if holders of any class of Common Stock are to receive payment
in shares of any class of Common Stock other than Class D Common, then holders
of shares of each class of Common Stock must receive payment only in shares of
such respective class of Common Stock. The rights of the holders of Common Stock
to receive dividends are subject to the provisions of the Preferred Stock.
(c) Reservation. The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock: (i) Class A
Common in a quantity sufficient to provide for the conversion of all outstanding
shares of the Class B Common and Class C Common into Class A Common; and (ii)
Class C Common in a quantity sufficient to provide for the conversion of all
outstanding shares of the Class A Common into Class C Common.
(d) Conversion of Common Stock.
(i) Conversion of Class A Common. Subject to the terms and conditions
stated herein, the holder of any shares of Class A Common shall have the right
at any time, at such holder's option, to convert all or a portion of the shares
of Class A Common so held into the same number of shares of Class C Common. Such
right of conversion shall be exercised (A) by giving written notice (the
"Notice") to the Corporation at least ten (10) days prior to the Conversion Date
(as defined below) specified therein that the holder elects to convert a stated
number of shares of Class A Common into shares of Class C Common on the date
specified in such Notice (the "Conversion Date") and (B) by surrendering the
certificate or certificates representing at least the number of shares of Class
A Common to be converted to the Corporation at its principal office at any time
during the usual business hours on or before the Conversion Date, duly endorsed
in blank by the owner of the certificate so surrendered, together with a
statement of the name or names (with addresses) of the Person or Persons in
whose name or names the certificate or certificates for shares issued on
conversion shall be registered. Shares of Class A Common that have been
converted hereunder shall not be canceled but shall remain as treasury shares
unless retired by resolution of the Board of Directors.
(ii) Conversion of Class B Common. Each share of Class B Common shall
also be convertible, at the option of the holder thereof, into one fully paid
and nonassessable share of Class A Common. The procedures for conversion of
Class A Common into Class C Common, as set forth in paragraph (i) of this
Section 4.3(d), shall also be applicable to the conversion of Class B Common
into Class A Common. Shares of Class B Common that have been converted hereunder
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shall not be canceled but shall remain as treasury shares unless retired by
resolution of the Board of Directors.
(iii) Class B Stockholders. Class B Stockholders (as hereinafter
defined) and Class B Permitted Transferees (as hereinafter defined) may exercise
their respective rights as a holder of shares of Class C Common to convert such
shares into shares of Class A Common, or otherwise acquire shares of Class A
Common, only in the event that: (A) the Corporation shall merge or consolidate
with or into, or otherwise acquire, any other Person and such Class B
Stockholder or Class B Permitted Transferee receives shares of Class A Common in
exchange for such Class B Stockholder's or Class B Permitted Transferee's
interest in such other Person; (B) such Class B Stockholder or Class B Permitted
Transferee desires to sell shares of Class A Common into which all or part of
its shares of Class C Common are to be converted in connection with any proposed
purchase of Class A Common by another Person (other than a Class B Stockholder
or a Class B Permitted Transferee); or (C) such Class B Stockholder or Class B
Permitted Transferee intends to sell shares of Class A Common into which all or
part of its shares of Class C Common are to be converted pursuant to a
registration statement which has been declared effective.
(iv) Conversion of Class C Common. Each share of Class C Common shall
also be convertible, at the option of the holder thereof, into one fully paid
and nonassessable share of Class A Common. The procedures for conversion of
Class A Common into Class C Common, as set forth in paragraph (i) of this
Section 4.3(d), shall also be applicable to the conversion of Class C Common
into Class A Common. Shares of Class C Common that have been converted hereunder
shall not be canceled but shall remain as treasury shares unless retired by
resolution of the Board of Directors.
(v) Surrender of Certificates. Subject to the other provisions of
this Section 4.3 and of ARTICLE IX of this Amended and Restated Certificate of
Incorporation, promptly after (A) the Conversion Date and (B) the surrender of
such certificate or certificates representing the share or shares of Class A
Common, Class B Common or Class C Common to be converted, the Corporation shall
issue and deliver, or cause to be issued and delivered, to the holder requesting
conversion, registered in such name or names as such holder may direct, a
certificate or certificates for the number of shares of the class of Common
Stock issuable upon the conversion of such share or shares, together with a
certificate or certificates evidencing any balance of the shares of the class
surrendered to the Corporation but not then being converted. To the extent
permitted by law, such conversion shall be deemed to have been effected as of
the close of business on the later of the Conversion Date or the date upon which
the Corporation shall have received the certificate or certificates representing
the shares to be converted, and at such time the rights of the holder of such
share or shares as such holder shall cease, and the person or persons in whose
name or names any certificate or certificates for shares shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of such shares of Class A Common or Class C Common, as the case may be.
(vi) Listing. If the shares of Common Stock required to be reserved
for the purpose of conversion hereunder require listing on any national
securities exchange, before such shares are issued upon conversion, the
Corporation will, at its expense and as expeditiously as possible, use its
commercially reasonable best efforts to cause such shares to be listed or duly
approved for listing on such national securities exchange.
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(e) No Charge. The issuance of certificates representing Common Stock upon
conversion of Class A Common, Class B Common or Class C Common, as hereinabove
set forth shall be made without charge or any expense or issuance tax in respect
thereof; provided, however, that the Corporation shall not be required to pay
any taxes which may be payable in respect of any transfer involved in the
issuance and delivery of any certificate in a name other than that of the holder
of the shares converted.
(f) Transfer of Class B Common.
(i) A Beneficial Owner (as hereinafter defined) of shares of Class B
Common (herein referred to as a AClass B Stockholder") may transfer, directly or
indirectly, Beneficial Ownership (as hereinafter defined) of shares of Class B
Common, whether by sale, assignment, gift or otherwise, only to a Class B
Permitted Transferee (as hereinafter defined) and no Class B Stockholder may
otherwise transfer Beneficial Ownership of any shares of Class B Common. In the
event of any attempted transfer of the Beneficial Ownership of any shares of
Class B Common in violation of the limitation provided in the preceding
sentence, the shares of Class B Common with respect to which the transfer of
such Beneficial Ownership has been attempted shall be deemed to have been
converted automatically, without further deed or action by or on behalf of any
person, into shares of Class A Common. A "Class B Permitted Transferee" shall
be, if the Class B Stockholder is an individual:
(A) the estate of the Class B Stockholder or any legatee, heir or
distributees thereof;
(B) the spouse or former spouse of the Class B Stockholder;
(C) any parent or grandparent and any lineal descendant
(including any adopted child) of any parent or grandparent of the Class B
Stockholder or of the Class B Stockholder's spouse or former spouse;
(D) any guardian or custodian (including a custodian for purposes
of the Uniform Gift to Minors Act or Uniform Transfers to Minors Act) for,
or any executor, administrator, conservator and/or other legal
representative of, the Class B Stockholder and/or any Class B Permitted
Transferee or Class B Permitted Transferees thereof;
(E) a trust (including a voting trust), and any savings or
retirement account, such as an individual retirement account for purposes
of federal income tax laws, whether or not involving a trust, principally
for the benefit of such Class B Stockholder and/or any Class B Permitted
Transferee or Class B Permitted Transferees thereof, including any trust in
respect of which such Class B Stockholder and/or any Class B Permitted
Transferee or Class B Permitted Transferees thereof has any general or
special power of appointment or general or special non-testamentary power
or special testamentary power of appointment limited to any Class B
Permitted Transferee or Class B Permitted Transferees;
(F) any corporation, partnership or other business entity if
Substantial Beneficial Ownership thereof is held by such Class B
Stockholder and/or any Class B Permitted Transferee or Class B Permitted
Transferees thereof; provided, however, that if
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such Class B Stockholder, and all Class B Permitted Transferees thereof,
cease, for whatever reason, to hold Substantial Beneficial Ownership of
such corporation, partnership or other business entity, then any and all
shares of Class B Common that such corporation, partnership or other
business entity is the Beneficial Owner of shall be deemed to be converted
automatically, without further deed or action by or on behalf of any
person, into shares of Class A Common;
(G) any Founding Investor and/or any Class B Permitted Transferee
or Class B Permitted Transferees of a Founding Investor; and
(H) the Corporation.
A "Class B Permitted Transferee" shall be, if the Class B Stockholder is a
corporation, partnership or other business entity:
(1) any employee benefit plan, or trust thereunder or therefor,
sponsored by the Class B Stockholder;
(2) any trust (including any voting or liquidating trust)
principally for the benefit of the Class B Stockholder and/or any Class B
Permitted Transferee or Class B Permitted Transferees thereof;
(3) any corporation, partnership or other business entity if
Substantial Beneficial Ownership thereof is held by such Class B
Stockholder and/or any Class B Permitted Transferee or Class B Permitted
Transferees thereof; provided, however, that if such Class B Stockholder,
and all Class B Permitted Transferees thereof, cease, for whatever reason,
to hold Substantial Beneficial Ownership of such corporation, partnership
or other business entity, then any and all shares of Class B Common that
such corporation, partnership or other business entity is the Beneficial
Owner of shall be deemed to be converted automatically, without further
deed or action by or on behalf of any person, into shares of Class A
Common;
(4) the stockholders of the corporation, partners of the
partnership or other owners of equity interests in any other business
entity, who receive such shares, by way of dividend or distribution (upon
dissolution, liquidation or otherwise), provided that such transfer will
not result in Beneficial Ownership of any of such shares by any person who
did not have the power to control such corporation, partnership or business
entity at the time such corporation, partnership or business entity first
acquired Beneficial Ownership of such shares of Class B Common (other than
by any person who qualifies as a Class B Permitted Transferee pursuant to
any other provision of this paragraph (i) of this Section 4.3(g));
(5) the Corporation; and
(6) any Founding Investor and/or any Class B Permitted Transferee
or Class B Permitted Transferees of a Founding Investor.
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(ii) Any person who holds shares of Class B Common for the Beneficial
Ownership of another, including (A) any broker or dealer in securities; (B) any
clearing house; (C) any bank, trust company, savings and loan association or
other financial institution; (D) any other nominee; and (E) any savings plan or
account or related trust, such as an individual retirement account, principally
for the benefit of any individual, may transfer such shares to the person or
persons for whose benefit it holds such shares. Notwithstanding anything to the
contrary set forth herein, any holder of Class B Common may pledge such shares
to a pledgee pursuant to a bona fide pledge of such shares as collateral
security for indebtedness due to the pledgee, provided that such shares may not
be transferred to or registered in the name of the pledgee unless such pledgee
is a Class B Permitted Transferee. In the event of foreclosure or other similar
action by the pledgee, such pledged shares shall automatically, without any act
or deed on the part of the Corporation or any other person, be converted into
shares of Class A Common unless within five business days after such foreclosure
or similar event such pledged shares are returned to the pledgor or transferred
to a Class B Permitted Transferee. The foregoing provisions of this paragraph
shall not be deemed to restrict or prevent any transfer of such shares by
operation of law upon incompetence, death, dissolution or bankruptcy of any
Class B Stockholder or any provision of law providing for, or judicial order of,
forfeiture, seizure or impoundment.
(iii) Any transferee of shares of Class B Common pursuant to a
transfer made in violation of paragraphs (i) and (ii) of this Section 4.3(g)
shall have no rights as a stockholder of the Corporation and no other rights
against or with respect to the Corporation except the right to receive, in
accordance with paragraph (ii) of Section 4.3(d) or paragraphs (i) and (ii) of
this Section 4.3(g), as applicable, shares of Class A Common upon the conversion
of such transferred shares. Notwithstanding any other provision of this Amended
and Restated Certificate of Incorporation, the Corporation shall, to the full
extent permitted by law, be entitled to issue shares of Class B Common to any
person from time to time.
(iv) The Corporation and any transfer agent of Class B Common may as
a condition to the transfer or the registration of any transfer of shares of
Class B Common permitted by paragraphs (i) and (ii) of this Section 4.3(g)
require the furnishing of such affidavits or other proof as they deem necessary
to establish that such transferee is a Class B Permitted Transferee.
(v) For purposes of paragraph (i) of this Section 4.3(g): (A) the
term "Beneficial Ownership," in respect of shares of Class B Common, shall mean
possession of the power and authority, either singly or jointly with another, to
vote or dispose of or to direct the voting or disposition of such shares and the
term "Beneficial Owner," in respect of shares of Class B Common, shall mean the
person or persons who possess such power and authority; and (B) the term
"Substantial Beneficial Ownership," in respect of any corporation, partnership
or other business entity, shall mean possession of the power and authority,
either singly or jointly with another, to vote or dispose of or to direct the
voting or disposition of at least 80% of each class of equity ownership interest
in such corporation, partnership or other business entity.
Section IV.4. No Interference. Except as otherwise provided in ARTICLE IX
of this Amended and Restated Certificate of Incorporation, the Corporation will
not close its books against the transfer of any share of Common Stock or of any
of the shares of Common Stock issued or issuable upon the conversion of such
shares of Common Stock in any manner which interferes with the timely conversion
of any of such shares.
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Section IV.5. Mergers, Consolidations. In the case of a merger or
consolidation which reclassifies or changes the shares of Common Stock, or in
the case of the consolidation or merger of the Corporation with or into another
corporation or corporations or the transfer of all or substantially all of the
assets of the Corporation to another corporation or corporations, each share of
each class of Common Stock shall thereafter be convertible into the greatest
number or amount of shares of stock or other securities or property to which a
holder of a share of the class of Common Stock entitled to receive the greatest
number or amount of such stock or other securities or property would have been
entitled upon such reclassification, change, consolidation, merger or transfer,
and, in any such case, appropriate adjustment (as determined in good faith by
the Corporation's Board of Directors) shall be made in the application of the
provisions herein set forth with respect to the rights and interests thereafter
of the holders of each class of Common Stock to the end that the provisions set
forth herein shall thereafter be applicable, as nearly as reasonably may be
practicable, in relation to any shares of stock or other securities on property
thereafter deliverable upon the conversion of shares of each class of Common
Stock. In case of any such merger or consolidation, the resulting or surviving
corporation (if not the Corporation) shall expressly assume the obligation to
deliver, upon conversion of each class of Common Stock, such stock or other
securities or property as the holders of the each class of Common Stock
remaining outstanding shall be entitled to receive pursuant to the provisions
hereof, and to make provisions for the protection of the conversion rights
provided for in this ARTICLE IV.
Section IV.6. Liquidation, Dissolution or Winding Up. Subject to the
provisions of the Preferred Stock, in the event of any Liquidation of the
Corporation, all remaining assets of the Corporation shall be distributed to
holders of the Common Stock pro rata at the same rate per share of each class of
Common Stock according to their respective holdings of shares of the Common
Stock.
Section IV.7. Miscellaneous. Subject to the provisions of ARTICLE IX of
this Amended and Restated Certificate of Incorporation:
(a) Registration of Transfer. The Corporation shall keep at its principal
office a register for the registration of Capital Stock. Upon the surrender of
any certificate representing Capital Stock at such place, the Corporation shall,
at the request of the record holder of such certificate, execute and deliver (at
the Corporation's expense) a new certificate or certificates in exchange
therefor representing in the aggregate the number of shares represented by the
surrendered certificate. Each such new certificate shall be registered in such
name and shall represent such number of shares as is requested by the holder of
the surrendered certificate and shall be substantially identical in form to the
surrendered certificate, and dividends shall accrue on the Capital Stock
represented by such new certificate from the date to which dividends have been
fully paid on such Capital Stock represented by the surrendered certificate. The
issuance of new certificates shall be made without charge to the original
holders of the surrendered certificates for any issuance tax in respect thereof
or other cost incurred by the Corporation in connection with such issuance.
(b) Replacement. Upon receipt of evidence reasonably satisfactory to the
Corporation (an affidavit of the registered holder shall be satisfactory) of the
ownership and the loss, theft, destruction or mutilation of any certificate
evidencing shares of any class or series of Capital Stock, and in the case of
any such loss, theft or destruction, upon receipt of an indemnity reasonably
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satisfactory to the Corporation (provided that if the holder is a financial
institution or other institutional investor its own agreement shall be
satisfactory), or, in the case of any such mutilation upon surrender of such
certificate, the Corporation shall (at its expense) execute and deliver in lieu
of such certificate a new certificate of like kind representing the number of
shares of such class or series represented by such lost, stolen, destroyed or
mutilated certificate and dated the date of such lost, stolen, destroyed or
mutilated certificate, and dividends shall accrue on the Capital Stock
represented by such new certificate from the date to which dividends have been
fully paid on such lost, stolen, destroyed or mutilated certificate.
(c) Definitions. The following terms shall have the following meanings:
"Advance of Expenses" has the meaning set forth in Section 8.2.
"Beneficial Ownership" has the meaning set forth in Section 4.3(g)(v).
"Capital Stock" has the meaning set forth in Section 4.1.
"Class A Common" has the meaning set forth in Section 4.1.
"Class B Common" has the meaning set forth in Section 4.1.
"Class B Permitted Transferee" has the meaning set forth in Section
4.3(g).
"Class B Stockholder" has the meaning set forth in Section 4.3(g).
"Class C Common" has the meaning set forth in Section 4.1.
"Class D Common" has the meaning set forth in Section 4.1.
"Common Stock" has the meaning set forth in Section 4.1.
"Communications Act" has the meaning set forth in Section 9.1.
"Conversion Date" has the meaning set forth in Section 4.2(d)(i).
"Corporation" has the meaning set forth in ARTICLE I.
"DGCL" has the meaning set forth in ARTICLE III.
"FCC" has the meaning set forth in Section 9.1.
"Final Adjudication" has the meaning set forth in Section 8.2.
"Founding Investor" means Alfred C. Liggins, III or Catherine L.
Hughes.
"Indemnitee" has the meaning set forth in Section 8.2.
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"Liquidation" with respect to the Corporation, means the liquidation,
dissolution or winding up of the Corporation.
"Notice" has the meaning set forth in Section 4.3(d)(i).
"Person" means an individual, a partnership, a joint venture, a
corporation, an association, a joint stock company, a limited liability company,
a trust, an unincorporated association and any other entity or organization.
"Preferred Stock" has the meaning set forth in Section 4.2.
"Proceeding" has the meaning set forth in Section 8.2.
"Subsidiary" means any corporation with respect to which another
specified corporation has the power to vote or direct the voting of sufficient
securities to elect directors having a majority of the voting power of the board
of directors of such corporation.
"Substantial Beneficial Ownership" has the meaning set forth in
Section 4.3(g)(v).
"Undertaking" has the meaning set forth in Section 8.2.
ARTICLE V
Existence
The Corporation is to have a perpetual existence.
ARTICLE VI
General Provisions
Section VI.1. Dividends. The Board of Directors of the Corporation shall
have authority from time to time to set apart out of any assets of the
Corporation otherwise available for dividends a reserve or reserves as working
capital or for any other purpose or purposes, and to abolish or add to any such
reserve or reserves from time to time as said Board may deem to be in the
interest of the Corporation; and said Board shall likewise have power to
determine in its discretion, except as herein otherwise provided, what part of
the assets of the Corporation available for dividends in excess of such reserve
or reserves shall be declared in dividends and paid to the stockholders of the
Corporation.
Section VI.2. Issuance of Stock. The shares of all classes and series of
Capital Stock of the Corporation may be issued by the Corporation from time to
time for such consideration as from time to time may be fixed by the Board of
Directors of the Corporation, provided that shares having a par value shall not
be issued for a consideration less than such par value, as determined by the
Board. At any time, or from time to time, the Corporation may grant rights or
options to purchase from the Corporation any shares of its Capital Stock of any
class or series to run for such period of time, for
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such consideration, upon such terms and conditions, and in such form as the
Board of Directors of the Corporation may determine. The Board of Directors of
the Corporation shall have authority, as provided by law, to determine that only
a part of the consideration which shall be received by the Corporation for the
shares of its Capital Stock having a par value be capital, provided that the
amount of the part of such consideration so determined to be capital shall at
least be equal to the aggregate par value of such shares. The excess, if any, at
any time, of the total net assets of the Corporation over the amount so
determined to be capital, as aforesaid, shall be surplus. All classes and series
of Capital Stock of the Corporation shall be and remain at all times
nonassessable.
The Board of Directors of the Corporation is hereby expressly authorized,
in its discretion, in connection with the issuance of any obligations or Capital
Stock of the Corporation (but without intending hereby to limit its general
power so to do in other cases), to grant rights or options to purchase Capital
Stock of the Corporation of any class or series upon such terms and during such
period as the Board of Directors of the Corporation shall determine, and to
cause such rights to be evidenced by such warrants or other instruments as it
may deem advisable.
Section VI.3. Inspection of Books and Records. The Board of Directors of
the Corporation shall have power from time to time to determine to what extent
and at what times and places and under what conditions and regulations the
accounts and books of the Corporation, or any of them, shall be open to the
inspection of the stockholders; and no stockholder shall have any right to
inspect any account or book or document of the Corporation, except as conferred
by the laws of the State of Delaware, unless and until authorized so to do by
resolution of the Board of Directors or the stockholders of the Corporation.
Section VI.4. Location of Meetings, Books and Records. Except as
otherwise provided in the Bylaws, the stockholders of the Corporation and the
Board of Directors of the Corporation may hold their meetings and have an office
or offices outside of the State of Delaware, and, subject to the provisions of
the laws of said State, may keep the books of the Corporation outside of said
State at such places as may, from time to time, be designated by the Board of
Directors.
Section VI.5. Board of Directors Meeting. The Board of Directors shall be
comprised of the number of directors specified in the Corporation's Bylaws, and
such directors shall be elected in the manner contemplated by such Bylaws.
ARTICLE VII
Amendments
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation in
the manner now or hereinafter prescribed herein and by the laws of the State of
Delaware, and all rights conferred upon stockholders herein are granted subject
to this reservation. Notwithstanding the foregoing or anything contained in this
Amended and Restated Certificate of Incorporation to the contrary, (i) no
amendment, modification or waiver shall be binding or effective with respect to
Article VIII or clause (i) of this Article VII without the affirmative vote of
the holders of at least two-thirds of the outstanding shares of Class A Common
of the Corporation, and (ii) no such action under this
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ARTICLE VII shall change (A) the redemption, conversion, voting or other rights
of any class or series of Preferred Stock without the affirmative vote of the
holders of a majority of each such class or series of Preferred Stock then
outstanding, (B) the conversion or voting rights of any class of Common Stock
without the affirmative vote of the holders of a majority of each class of
Common Stock then outstanding, and (C) the percentage required to approve any
amendment, modification or waiver described herein, without the affirmative vote
of holders of that percentage of the class or series of Capital Stock then
required to approve such amendment, modification or waiver.
ARTICLE VIII
Liability
Section VIII.1. Limitation of Liability.
(a) To the fullest extent permitted by the DGCL as it now exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than permitted as of the date this Amended and Restated Certificate of
Incorporation is filed with the State of Delaware), and except as otherwise
provided in the Corporation's Bylaws, no director of the Corporation shall be
liable to the Corporation or its stockholders for monetary damages arising from
a breach of fiduciary duty owed to the Corporation or its stockholders.
(b) Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
Section VIII.2. Right to Indemnification. Each person who was or is made
party or is threatened to be made a party to or is otherwise involved (including
involvement as a witness) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "Proceeding"), by
reason of the fact that he or she is or was a director or officer of the
Corporation or, while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter, an "Indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director or officer or in any other capacity
while serving as a director or officer, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the DGCL, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide for broader
indemnification rights than permitted as of the date this Amended and Restated
Certificate of Incorporation is filed with the State of Delaware), against all
expense, liability and loss (including attorneys' fees, judgments, fines, excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators; provided, however, that except as provided in
Section 8.3 of this ARTICLE VIII with respect to proceedings to enforce rights
to indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part
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thereof) initiated by such indemnitee only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section 8.2 of this ARTICLE VIII shall be a
contract right and shall include the obligation of the Corporation to pay the
expenses incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "Advance of Expenses"); provided, however, that if
and to the extent that the Board of Directors of the Corporation requires, an
advance of expenses incurred by an indemnitee in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an
undertaking (hereinafter an "Undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter a
"Final Adjudication") that such indemnitee is not entitled to be indemnified for
such expenses under this Section 8.2 or otherwise. The Corporation may, by
action of its Board of Directors, provide indemnification to employees and
agents of the Corporation with the same or lesser scope and effect as the
foregoing indemnification of directors and officers.
Section VIII.3. Procedure for Indemnification. Any indemnification of a
director or officer of the Corporation or advance of expenses under Section 8.2
of this ARTICLE VIII shall be made promptly, and in any event within forty-five
days (or, in the case of an advance of expenses, twenty days) upon the written
request of the director or officer. If a determination by the Corporation that
the director or officer is entitled to indemnification pursuant to this ARTICLE
VIII is required, and the Corporation fails to respond within sixty days to a
written request for indemnity, the Corporation shall be deemed to have approved
the request. If the Corporation denies a written request for indemnification or
advance of expenses, in whole or in part, or if payment in full pursuant to such
request is not made within forty-five days (or, in the case of an advance of
expenses, twenty days), the right to indemnification or advances as granted by
this ARTICLE VIII shall be enforceable by the director or officer in any court
of competent jurisdiction. Such person's costs and expenses incurred in
connection with successfully establishing his or her right to indemnification,
in whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than an action
brought to enforce a claim for the advance of expenses where the undertaking
required pursuant to Section 8.2 of this ARTICLE VIII, if any, has been tendered
to the Corporation) that the claimant has not met the standards of conduct which
make it permissible under the DGCL for the Corporation to indemnify the claimant
for the amount claimed, but the burden of such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the DGCL, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
The procedure for indemnification of other employees and agents for whom
indemnification is provided pursuant to Section 8.2 of this ARTICLE VIII shall
be the same procedure set forth in this Section 8.3 for directors or officers,
unless otherwise set forth in the action of the Board of Directors of the
Corporation providing for indemnification for such employee or agent.
Section VIII.4. Insurance. The Corporation may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a
director, officer, employee or agent of the
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Corporation or was serving at the request of the Corporation as a director,
officer, employee or agent of another Corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss asserted
against him or her and incurred by him or her in any such capacity, whether or
not the Corporation would have the power to indemnify such person against such
expenses, liability or loss under the DGCL.
Section VIII.5. Service for Subsidiaries. Any person serving as a
director, officer, employee or agent of another Corporation, partnership,
limited liability company, joint venture or other enterprise, at least 50% of
whose equity interests are owned by the Corporation (hereinafter a "subsidiary"
for this ARTICLE VIII) shall be conclusively presumed to be serving in such
capacity at the request of the Corporation.
Section VIII.6. Reliance. Persons who after the date of the adoption of
this provision become or remain directors or officers of the Corporation or who,
while a director or officer of the Corporation, become or remain a director,
officer, employee or agent of a subsidiary, shall be conclusively presumed to
have relied on the rights to indemnity, advance of expenses and other rights
contained in this ARTICLE VIII in entering into or continuing such service. The
rights to indemnification and to the advance of expenses conferred in this
ARTICLE VIII shall apply to claims made against an indemnitee arising out of
acts or omissions which occurred or occur both prior and subsequent to the
adoption hereof.
Section VIII.7. Non-Exclusivity of Rights. The rights to indemnification
and to the advance of expenses conferred in this ARTICLE VIII shall not be
exclusive of any other right which any person may have or hereafter acquire
under this Amended and Restated Certificate of Incorporation or under any
statute, Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise.
Section VIII.8. Merger or Consolidation. For purposes of this ARTICLE
VIII, references to "the Corporation" shall include any constituent corporation
(including any constituent of a constituent) absorbed into the Corporation in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this ARTICLE VIII with respect to the
resulting or surviving corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued.
ARTICLE IX
Alien Ownership of Stock
Section IX.1. Applicability. This ARTICLE IX shall be applicable to the
Corporation so long as the provisions of Section 310 of the Communications Act
of 1934, as the same may be amended from time to time (the "Communications Act")
(or any successor, provisions thereto) are applicable to the Corporation. As
used herein, the term "alien" shall have the meaning ascribed
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thereto by the Federal Communications Commission ("FCC") on the date hereof and
in the future as Congress or the FCC may change such meaning form time to time.
If the provisions of Section 310 of the Communications Act (or any successor
provisions thereto) are amended, the restrictions in this ARTICLE IX shall be
amended in the same way, and as so amended, shall apply to the Corporation. The
Board of Directors of the Corporation may make such rules and regulations as it
shall deem necessary or appropriate to enforce the provisions of this ARTICLE
IX.
Section IX.2. Voting. Except as otherwise provided by law, not more than
twenty percent of the aggregate number of shares of Capital Stock of the
Corporation outstanding in any class or series entitled to vote on any matter
before a meeting of stockholders of the Corporation shall at any time be for the
account of aliens or their representatives or for the account of a foreign
government or representative thereof, or for the account of any corporation
organized under the laws of a foreign country.
Section IX.3. Stock Certificates. Shares of Capital Stock issued to or
held by or for the account of aliens and their representatives, foreign
governments and representatives thereof, and corporations organized under the
laws of foreign countries shall be represented by Foreign Share Certificates.
All other shares of Capital Stock shall be represented by Domestic Share
Certificates. All of such certificates shall be in such form not inconsistent
with this Amended and Restated Certificate of Incorporation as shall be prepared
or approved by the Board of Directors of the Corporation.
Section IX.4. Limitation on Foreign Ownership. Except as otherwise
provided by law, not more than twenty percent of the aggregate number of shares
of Capital Stock of the Corporation outstanding shall at any time be owned of
record by or for the account of aliens or their representatives or by or for the
account of a foreign government or representatives thereof, or by or for the
account of any corporation organized under the laws of a foreign country. Shares
of Capital Stock shall not be transferable on the books of the Corporation to
aliens or their representatives, foreign governments or representatives thereof,
or corporations organized under the laws of foreign countries if, as a result of
such transfer, the aggregate number of shares of Capital Stock owned by or for
the account of aliens and their representatives, foreign governments and
representatives thereof, and corporations organized under the laws of foreign
countries shall be more than twenty percent of the number of shares of Capital
Stock then outstanding. If it shall be found by the Corporation that Capital
Stock represented by a Domestic Share Certificate is, in fact, held by or for
the account of aliens or their representative, foreign governments or
representatives thereof, or corporations organized under the laws of foreign
countries, then such Domestic Share Certificate shall be canceled and a new
certificate representing such Capital Stock marked "Foreign Share Certificate"
shall be issued in lieu thereof, but only to the extent that after such issuance
the Corporation shall be in compliance with this ARTICLE IX; provided, however,
that if, and to the extent, such issuance would violate this ARTICLE IX, then,
the holder of such Capital Stock shall not be entitled to vote, to receive
dividends, or to have any other rights with regard to such Capital Stock to such
extent, except the right to transfer such Capital Stock to a citizen of the
United States.
Section IX.5. Transfer of Foreign Share Certificates. Any Capital Stock
represented by Foreign Share Certificates may be transferred either to aliens or
non-aliens. In the event that any Capital Stock represented by a certificate
marked "Foreign Share Certificate" is sold or transferred to a non-alien, then
such non-alien shall be required to exchange such certificate for a certificate
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marked "Domestic Share Certificate." If the Board of Directors of the
Corporation reasonably determines that a Domestic Share Certificate has been or
is to be transferred to or for the account of aliens or their representatives,
foreign governments or representatives thereof, or corporations organized under
the laws of foreign countries, the Corporation shall issue a new certificate for
the shares of Capital Stock transferred to the transferee marked "Foreign Shares
Certificate," cancel the old Domestic Share Certificate, and record the
transaction upon its books, but only to the extent that after such transfer is
complete, the Corporation shall be in compliance with this ARTICLE IX.
Notwithstanding any other provision of this Amended and Restated
Certificate of Incorporation, the transfer or conversion of the Corporation's
Capital Stock, whether voluntary or involuntary, shall not be permitted, and
shall be ineffective, if such transfer or conversion would (i) violate (or would
result in violation of) the Communications Act or any of the rules or regulation
promulgated thereunder or (ii) require the prior approval of the FCC, unless
such prior approval has been obtained.
ARTICLE X
Section 203 Election
The Corporation expressly elects not to be governed by Section 203 of Title
8 of the DGCL.
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IN WITNESS WHEREOF, said Radio One, Inc. has caused its corporate seal to
be hereunto affixed and this Amended and Restated Certificate of Incorporation
to be signed by Alfred C. Liggins, III, its President, and attested to by Scott
R. Royster, one of its Vice Presidents, this _____ day of May, 2000.
RADIO ONE, INC.
By:
___________________________________
Alfred C. Liggins, III, President
[SEAL]
ATTEST:
By:
__________________________________
Scott R. Royster, Vice President